The Supreme Court today granted cert in Kiyemba v. Obama (no. 08-1234), which raises the question whether a judge may order the government to bring a detainee into the United States if the government no longer asserts detention authority over an individual and if after some period of time the government appears unable to identify an appropriate foreign country to accept custody of that person.

A court in the UK has issued the latest in a series of opinions involving a former GTMO detainee and the question of whether to publicly release certain information that the US had provided the UK (apparently concerning the treatment of the detainee by US personnel in April 2002). This latest round of litigation raises a number of questions, including the recurring question of whether a court can second-guess an executive official’s estimation that public disclosure of information would cause harm to national security (in this case, whether a judicial decision to disclose the information would prompt the US to respond by constricting its intelligence cooperation with the UK’s security services). Notably, key portions of the opinion are redacted (at least for now), but the long and short of it is that the court ultimately concludes that there is insufficient evidence to believe that such harms would occur, notwithstanding the government’s claim to the contrary.

A scientist previously involved in satellite-related programs at NASA and highly-classified research at the Department of Energy has been arrested and charged with attempting to transmit classified national defense information to a foreign government. The charge stems from a sting operation in which an undercover employee of the FBI posed as a Mossad agent. Details are available in the press release posted here.

3. Upcoming Event: “Somebody’s Watching Me: Surveillance and Privacy in an Age of National Insecurity”

Symposium at Case Western Reserve University School of Law, Institute for Global Security Law & Policy

October 22-23, 2009

Moot Courtroom (A59)

SCHEDULE

Thursday, October 22, 2009

4:30-7:30 p.m.

The Institute for Global Security Law and Policy International Film Series

“The Lives of Others” (Das Leben der Anderen)

Winner of the Academy Award for best foreign film in 2007

Introduction by Mary Beth Stein, George Washington University, Department of German Studies

Friday, October 23, 2009

8:30 a.m. – 4:30 p.m.

8:30-9:00 a.m.

Registration

9:00-9:30 a.m.

Welcome/Introduction

Interim Dean Robert Rawson, Case Western Reserve University School of Law

Professor Robert Strassfeld, Director, Institute for Global Security Law and Policy

Case Western Reserve University School of Law

9:30-10:45 a.m.

Panel: Surveillance in Public Places and Closed Circuit Television

Ms. Aileen Xenaxis, Senior Law and Policy Analyst, Center for Health and Homeland Security, University of Maryland School of Law

Professor Jacqueline Lipton, Associate Dean and Associate Director, Frederick K. Cox Interational Law Center, Case Western Reserve University School of Law

As a result of the unprecedented 41 drone strikes into Pakistan authorized by the Obama administration, aimed at Taliban and al Qaeda networks based there, about a half-dozen leaders of militant organizations have been killed–including two heads of Uzbek terrorist groups allied with al Qaeda, and Baitullah Mehsud, the leader of the Pakistani Taliban–in addition to hundreds of lower-level militants and civilians, according to our analysis.[1]

The number of civilian deaths caused by the drones is an important issue because in the charged political atmosphere of today’s Pakistan, where anti-Americanism is rampant, the drone program is a particular cause of anger among those who see it as an infringement on Pakistan’s sovereignty. A Gallup poll in August found that only 9 percent of Pakistanis favored the strikes, while two-thirds opposed them.

An important factor in the controversy over the drones is the widespread perception that they kill large numbers of Pakistani civilians. Some commentators have asserted that the overwhelming majority of casualties are civilians. Amir Mir, a leading Pakistani journalist, wrote in The News in April that since January 2006, American drone attacks had killed “687 innocent Pakistani civilians.” A month later, a similar claim was made in theNew York Times by counterinsurgency experts David Kilcullen and Andrew Exum, who wrote that drone strikes had “killed some 700 civilians. This is 50 civilians for every militant killed, a hit rate of 2 percent.” In other words, in their analysis, 98 percent of those killed in drone attacks were civilians. Kilcullen and Exum advocated a moratorium on the strikes because of the “public outrage” they arouse.

A very different picture was presented earlier this month by the Long War Journal, an American blog that closely tracks terrorist groups, in particular al Qaeda and the Taliban. Bill Roggio, the editor of Long War Journal, concluded that according to his close analysis of the drone strikes, only 10 percent of those killed were civilians.

Our analysis suggests quite different conclusions than those of either Kilcullen and Exum or the Long War Journal. ….

This Comment will discuss the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) relating to the question of whether a combatant hors de combat can be considered a victim of crimes against humanity. It will focus on the Appeals Judgment in the case of Prosecutor v. Martić as well as the ongoing appeal in the case of Prosecutor v. Mrkšić. Before the trials against Mrkšić and Martić, the ICTY had not been called upon to pronounce whether the notion of crimes against humanity can apply to crimes committed against victims who are not civilians. That question was recently answered by both the Trial Chamber in Mrkšić and the Appeals Chamber in Martić.

Unfortunately, and to the detriment of the ICTY jurisprudence’s clarity and consistency, the Chambers came to different conclusions as to whether victims of crimes against humanity must be civilians. This Comment will address the confusion within ICTY jurisprudence. It will address how the Trial Chamber in Mrkšić left a gap in its analysis of this issue. It will then review the holding of the Appeals Chamber in Martić and suggest that the reasoning in the Martić Appeals Judgment should be the proper interpretation of victimhood under crimes against humanity. Finally, this Comment will suggest that even though the Martić Appeals Judgment offers the best legal reasoning for victim status under crimes against humanity, a key argument needs to be addressed so this area of ICTY jurisprudence can be more sufficiently resolved.

Before the problem and solution are presented, this Comment will present an in-depth review of the history of crimes against humanity. It will start by reviewing the introduction of crimes against humanity in international jurisprudence. In order to understand the differences between crimes against humanity and war crimes, a history of war crimes will be presented with an emphasis on the connection to an armed conflict. That emphasis on an armed conflict will be important to understand the Statute of the ICTY (the “Statute”) and its jurisdiction over crimes against humanity. From there, this Comment will review the relationship of crimes against humanity and war crimes and the subsequent split between to the two crimes. From there, the relevant articles of the Statute of the ICTY Statute will be discussed, followed by the other international texts that are important to the discussion of determining if combatants hors de combat can be victims of crimes against humanity under the ICTY Statute.